Metadata Formally Recognized by Courts
August 7, 2011
Meta-Cognition, meaning to think about thinking, is a term psychologists love to throw around to discuss intelligence and the capacity to learn. Now, it seems the legal community is going to jump aboard the thinking-ship with their own term – metadata, to think about data, or more precisely, data thinking about data. The article, Technology: Recent Cases Help Evolve Guidelines for Producing Metadata: Keeping ESI Load Files in a Forensically Sound Manner that Preserves Metadata is Key, on Inside Counsel, examines the nature of metadata and tries to pin down a practical use for it.
The first part of the problem – what is metadata? – is universally agreed upon now days. Metadata is any non-visible data, such as author, word count, title (including changes), time/date stamps, etc…, connected to documents or other Electronically Stored Information (ESI). Lawyers can use this valuable information to nail down time lines, prove who monkeyed with a document, and which custodians did what to ESIs, in general.
As the legal community catches up with technology, more and more judges are ruling that metadata is not hearsay, but rather falls under the protection of ESI. Most recently, a judge set some practical guidelines for metadata:
“Judge Shira Scheindlin emphasized that metadata is an integral part of an electronic record. Although it is not legal precedent, her list is a reasonable set of guidelines for in-house counsel responding to ESI requests, as follows. Earlier this year, in National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011) (opinion withdrawn upon agreement of the parties), Judge Shira Scheindlin emphasized that metadata is an integral part of an electronic record. Although it is not legal precedent, her list is a reasonable set of guidelines for in-house counsel responding to ESI requests, as follows. The metadata that should accompany the production of any text-based ESI includes: File Name…Custodian… Source Device…Source Path…Production Path…Modified Date…Modified Time…Time Offset Value…Identifier.”
Now that metadata is being recognized as a legitimate resource for information, indexing becomes even more vital than ever.
Catherine Lamsfuss, August 7, 2011
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